Excerpt:limitation act (ix of 1903), article 106 - partnership dissolved before the fixed period--suit for accounts or share in profits--limitation--suit for accounts barred--whether plaintiff in such suit can proceed against assets realised by defendant after dissolution and within limitation--plaint. - - the advertisement to which the first plaintiff is himself a party and the letter of april 1907, written on behalf of the second plaintiff, prove conclusively that as a matter of fact, the partnership was dissolved at the latest by the 19th october 1904. that being so, i see no escape from the conclusion that this suit, which was brought for a partnership account and share in partnership profits on the 17th of november 1907, is clearly time barred. but what that has to do with the law of..........of april 1907, written on behalf of the second plaintiff, prove conclusively that as a matter of fact, the partnership was dissolved at the latest by the 19th october 1904. that being so, i see no escape from the conclusion that this suit, which was brought for a partnership account and share in partnership profits on the 17th of november 1907, is clearly time barred. article 106 of the second schedule of the limitation act enacts that where a suit is, as this suit is, for taking partnership accounts or share in partnership profits, the date from which limitation begins to run is the dissolution of the partnership. the plaintiffs apparently laid considerable stress upon the agreement contained in clause 9 of ext. 1, which, they appear to think extended, as between the parties.....

Judgment:

Beaman, J.

1. I think one of the preliminary objections taken by the defendants proves fatal to the plaintiffs' present claim. Mr. Desai, who has argued the case for the plaintiffs, admits that he is not in a position to call any further evidence upon the question of fact, when the partnership was dissolved. The Court must, therefore, come to its conclusion on that point upon the papers which Mr. Wadia for the defendants has put in. The Court has the agreement, an advertisement, and a letter (Exts. 1, 2 and 3). According to the agreement it would appear that the intention of the parties, when the partnership was formed in 1903, was that it should last till 7th November 1904 with a month over in which to collect outstandings and settle all accounts. The advertisement to which the first plaintiff is himself a party and the letter of April 1907, written on behalf of the second plaintiff, prove conclusively that as a matter of fact, the partnership was dissolved at the latest by the 19th October 1904. That being so, I see no escape from the conclusion that this suit, which was brought for a partnership account and share in partnership profits on the 17th of November 1907, is clearly time barred. Article 106 of the second Schedule of the Limitation Act enacts that where a suit is, as this suit is, for taking partnership accounts or share in partnership profits, the date from which limitation begins to run is the dissolution of the partnership. The plaintiffs apparently laid considerable stress upon the agreement contained in Clause 9 of Ext. 1, which, they appear to think extended, as between the parties themselves, the duration of the partnership by one month beyond the date, whatever that date may have been upon which it was actually and in fact dissolved. But I am unable to accede to any such argument. If partners make an agreement of that sort between themselves, it appears to me that the only effect which could be given to it is that, assuming the partnership lasted up to the contemplated date, neither party could press the other for accounts until the added grace period had expired. But what that has to do with the law of limitation, or how it can operate to extend the period allowed by the Limitation Act, I must own I entirely fail to understand. In this view of the case, it appears to me too clear to admit of serious argument that the plaintiffs' claim is time-barred. But they have strenuously contended that although so much of their claim, as relates to the taking a general partnership account, may, upon that view of the law, be time-barred, they are at least, entitled to ask for a share of any outstandings recovered by the defendants after the 7th of November 1904 and within the period of limitation applying to a suit for moneys had and received. In support of that contention I have been referred to Knox v. Gye (1872) L.R. 5 H.L. 656; 32 L.J. Ch. 234; Dayal Jairaj v. Khatav Ladha 12 B.H.C.R. 97 and Merwanji Harmusji v. Rustomji Burjorji 6 B. 628. But after giving those cases careful consideration I am unable to see that they do sustain the plaintiffs' contention.

2. In Dayal Jairaj v. Khatav Ladha 12 B.H.C.R. 97 which was decided by Mr. Justice Green, the suit was not for a general partnership account at all. The learned Judge there referred, with approval, to the opinions of three of the learned law Lords who decided Knox v. Gye (1872) L.R. 5 H.L. 656; 32 L.J. Ch. 234. And Latham, J. in giving judgment in Merwanji Harmusji v. Rustomji Burjorji 6 B. 628 rests upon the decision of Green, J. quoting his excerpts from the decision of their Lordships in Knox v. Gye (1872) L.R. 5 H.L. 656; 32 L.J. Ch. 234. But in Merwanji Harmusji v. Rustomji Burjarji 6 B. 628 it appears to me that the facts are again easily distinguishable from the facts in this case. There, it is true, the suit was by an ex-partner against a former partner in a firm, which had been dissolved, to share in a definite sum of money which the defendant appears to have admitted to be a partnership asset; and, no doubt, there are observations, both in the judgment of Latham, J. and in the judgments of their Lordships of Appeal in Knox v. Gye (1872) L.R. 5 H.L. 656; 32 L.J. Ch. 234 which may appear on the first reading to lend some colour to the plaintiffs' contention that where a suit for general partnership accounts is barred, the plaintiffs may yet be allowed to proceed as for moneys had and received in respect of any outstanding partnership assets which have come into the defendants' hands within the period of limitation. I am very doubtful myself whether taking the decision in Knox v. Gye (1872) L.R. 5 H.L. 656; 32 L.J. Ch. 234 as a whole and keeping it strictly to its own facts, it can be legitimately used to support the reasoning and conclusion which have subsequently been based upon it. As a matter of fact the Lords of Appeal in that case found that the suit by an executor of a deceased partner against a surviving partner was time-barred. Much of their Lordships' reasoning and arguments, no doubt, turn upon the fact that the surviving partner had received a sum of 2,500 as a partnership asset more than six years after the partnership had been dissolved and, standing alone, no doubt, within the period of limitation. But it appears to me that excepting some observations by Lord Hatherley, the gist of the decision, at any rate of the majority, was that that fact alone would not remove the bar of limitation which had been interposed by the lapse of six years since the partnership was dissolved. Nor, speaking with all respect for any observations or opinions of other learned Judges who may seem to favour a contrary view, am I able to understand how, if a suit for general partnership accounts and a share in partnership profits is itself barred, the plaintiff in such a suit em be allowed to proceed speculatively against any and every partnership asset which may have been realized by the defendant after dissolution and within the period of limitation. In such a suit, it seems to me, questions would inevitably arise which could not be resolved without opening up the whole partnership account. It appears to me that allowing the plaintiffs to pursue such a course, might result in real hardship and great injustice to the defendants. I have said that this case is clearly distinguishable on its own facts from the authorities I have just been discussing. There is not a word in the plaint asking for any relief of the kind which the plaintiffs now think the Court should grant them. The plaintiffs never so much as allege that any assets have been recovered after November 1904. All their specific paryers are prayers proper to a suit of the kind they really meant to bring, prayers, that is to say, for a general partnership account, to be given their share of any partnership profits which such an account might disclose and that the defendants should bear the costs of resisting them in this suit. Since that is so, and I am quite clear that the suit is time-barred, I feel unable to accede to the plaintiffs' alternative contention that they should now be allowed to convert this defective plaint into a plaint merely for the recovery of moneys had and received on their account by the defendants subsequently to November 7, 1904.

3. This being my view, I must dismiss the plaintiffs' suit with all costs upon them, including costs reserved, if any.